State v. Fisher

• Decision Date: 29 February 2012
• Docket Number: No. 46,997–KA.,46,997–KA.
• Citation: 87 So.3d 189
• Parties: STATE of Louisiana, Appellee v. Kevin Ray FISHER, Appellant.
• Court: Court of Appeal of Louisiana — District of US

87 So.3d 189

STATE of Louisiana, Appellee

v.Kevin Ray FISHER, Appellant.

No. 46,997–KA.

Court of Appeal of Louisiana, Second Circuit.

Feb. 29, 2012.

Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, LA, for Appellant.

Charles R. Scott, II, District Attorney, Tommy J. Johnson, Geya W. Prudhomme, Jordan B. Bird, Assistant District Attorneys, for Appellee.

Before WILLIAMS, STEWART and SEXTON (Pro Tempore), JJ.

STEWART, J.

[2 Cir. 1]The defendant, Kevin Ray Fisher, was found guilty as charged of two counts of armed robbery with a firearm and given concurrent sentences of 27 1/2 years at hard labor without benefit of probation, parole, or suspension of sentence. Asserting that the trial court erred in denying his motion to suppress, in allowing other crimes evidence, and in imposing an excessive sentence, the defendant now appeals his conviction and sentence. Though we affirm the defendant's conviction for Count II, the armed robbery of the Dollar General Store on North Market (hereafter referred to as the “North Market Dollar General”), for other reasons we must reverse his conviction for Count I, the armed robbery of the Dollar General Store on Greenwood Road (hereafter referred to as the “Greenwood Dollar General”). The defendant's concurrent sentences are vacated, and the matter is remanded for a new sentence to be imposed.

FACTS

The defendant was arrested on January 10, 2005, when an attempt to rob a McDonald's restaurant located on Youree Drive in Shreveport during the early morning hours was thwarted by the police after a passerby reported seeing suspicious activity. Detective Rod Demery of the Shreveport Police Department conducted two recorded interviews with the defendant following his arrest that day. In both interviews, the defendant implicated himself in a number of robberies that had recently occurred. The defendant was initially charged with four counts of armed robbery involving three different Dollar General Stores and an Econo Lodge motel as well as with one count of the attempted armed robbery of the McDonald's.

[2 Cir. 2]On April 24 and 25, 2007, a hearing was held prior to the start of trial to determine whether the defendant's statements were given freely and voluntarily. Defense counsel also adopted a pro se motion to suppress that had been filed by the defendant. Detective Demery testified that the defendant claimed to be 17 at the time of his arrest. Demery explained that the age given by the defendant matched information in the police records; therefore, he believed the defendant and proceeded to question him. He advised the defendant both verbally and in writing of his Miranda rights. The defendant waived his rights and admitted during the first recorded interview to participating in a spree of robberies. When the defendant's mother called and reported that the defendant was actually 16, Detective Demery began the process anew with her present and conducted a second recorded interview after informing them of the Miranda rights and allowing them to speak in private. Detective Demery described the defendant as cooperative, respectful, and willing to talk. He denied using promises, threats, or coercion to elicit the defendant's statements.

The defendant's mother, Joyce Marie Fisher Mitchell, first claimed that she had not been allowed to speak privately with her son and that she had not been present for any interview. After the state played parts of the second recorded statement, Mitchell recalled that they had been allowed to speak privately and that she was present for the second interview. However, she continued to deny that he admitted any involvement in the robberies. She answered “no” when asked whether she felt her son had been pressured into talking to the police.

[2 Cir. 3]After considering the testimony and arguments of counsel, the trial court determined that the defendant freely and voluntarily gave both recorded statements. The trial court also heard arguments on the motion to suppress, and upon considering the testimony from the free and voluntary hearing, denied that motion.

As the jury trial was about to begin, the defendant pled guilty to three counts of armed robbery with a firearm and one count of attempted armed robbery with a firearm knowing that he would be sentenced to 19 years as to each armed robbery and seven and one-half years on the attempted armed robbery, all concurrent. However, the trial court agreed to defer sentencing for at least 30 days and indicated there was a possibility that a lesser sentence would be imposed.

Within days, the defendant sought to withdraw his guilty plea. However, the motion to withdraw was not heard until May 15, 2008. The defendant argued that he was not adequately advised when he pled and that he had not had sufficient time with counsel. He also complained that his co-defendants had since gotten more favorable outcomes. On June 11, 2008, the trial court allowed the defendant to withdraw his guilty plea and appointed new defense counsel. The trial court expressed concern that the young defendant had only one personal meeting with counsel during the two years from the time of his arrest until the plea.

New defense counsel filed a motion to quash, which the trial court granted as to the bill for the attempted armed robbery of the McDonald's. [2 Cir. 4]The ruling was based on the defendant having been a juvenile at the time of the offense.

Because there was some confusion about whether the trial court had ruled on the motion to suppress, the motion was heard again on December 2, 2009, at which time Detective Demery once more testified about the facts and circumstances of the two recorded statements. Though the trial court had previously denied the motion to suppress on April 25, 2007, this time it granted the motion to suppress as to the first statement given by the defendant without parental consultation or presence. However, the trial court denied the motion as to the second statement given while his mother was present.

On January 13, 2010, the state filed a new bill of information charging three counts and gave notice that it intended to use the defendant's statement as other crimes evidence.

On January 21, 2010, the state filed an amended bill charging just two counts—Count I being the armed robbery with a firearm of the Greenwood Dollar General and Count II being the armed robbery of the North Market Dollar General. Both included the enhancement for use of a firearm under La. R.S. 14:64.3. That same day the trial court held a hearing on the state's intention to introduce evidence of other crimes, wrongs, or acts by the defendant, but it did not issue a ruling until trial proceedings began on July 26, 2010. The trial court denied the state's request to use the attempted armed robbery of the McDonald's but granted its request to introduce anything the defendant said about his codefendants' actions and the [2 Cir. 5]robberies of an Econo Lodge and a Texaco. The defendant's second statement was redacted for trial purposes to exclude parts that could not be shown to or heard by the jury.

The state presented three witnesses. Emily Pizzolato, an employee of the Greenwood Dollar General, and Megan Lodge, a customer whose purse was taken during the robbery of the North Market Dollar General, testified. In both cases, the robbers wore masks and could not be identified. Detective Demery testified about what he learned from the defendant during the second interview, which was played for the jury. The defendant did not testify and did not present any witnesses. On July 29, 2010, the jury returned a verdict of guilty as charged on both counts.

On October 28, 2010, the trial court imposed concurrent sentences of 24 1/2 years for each armed robbery count and an additional five years for each count for the firearm enhancement under La. R.S. 14:64.3. Thus, the defendant was to serve 29 1/2 years at hard labor without benefit of probation, parole, or suspension of sentence. Prior to imposing the sentence, the trial court reviewed the history of the case, including the defendant's rejection of favorable plea offers. The trial court noted that, unlike his codefendants, the defendant had been steadfast in his refusal to accept a plea. The trial court also noted that the defendant had admitted involvementin other robberies for which he had not been tried. According to the trial court, the defendant had not shown maturity, had not expressed remorse, and had not accepted responsibility for his actions. His demeanor had at times indicated frustration and disapproval toward his attorney, and he appeared not to [2 Cir. 6]realize the unlawfulness of his conduct or the seriousness of his situation. The trial court was firm in its belief that the defendant “does not get it.” In mitigation, the trial court referred to the failure of the first appointed attorney to provide sufficient counsel before the guilty plea. The trial court also noted that the defendant, who was 16 when the offenses were committed, had acted under the strong provocation of an older codefendant, Jonathan Black, and that his mother had died since he had been in jail.

A motion to reconsider the sentence was heard on December 16, 2010. Defense counsel argued that the sentence was too long for such a young offender and that he should not be punished for his behavior before the court. The trial court denied the motion. However, on January 2, 2011, the trial court reconsidered its denial of the motion to reconsider and resentenced the defendant to 22 1/2 years on each armed robbery along with five years on each count for the firearm enhancement. Thus, the total concurrent sentence was 27 1/2 years at hard labor without benefits. This appeal followed.

DISCUSSION

Denial of the Motion to Suppress

The defendant first assigns as error the trial court's failure to suppress his second statement. He argues that the totality of the circumstances do not show that his statement...